Trafficking in persons

Other Crimes

R v Kovacs [2009] 2 Qd R 51

Fact Summary

This case involves Mr Zoltan and Ms Melita Kovacs, a married couple who owned a takeaway food store in the small town of Napranum near Weipa in Far North Queensland. Sometime in December 2000, the couple decided to bring a woman from the Philippines to Australia to have her work in their shop and as a domestic helper in their home. [R v Kovacs [2007] QCA 143 [2] (‘Kovacs’)] Subsequently, Mr Kovacs (an Australian citizen of Hungarian background) and his friend Mr Balint Olasz made plans to travel to Manila to find a suitable woman. [Kovacs [2009] 2 Qd R 51 [7]] Mr Olasz later claimed that he travelled to the Philippines in 2001 intending to find a legitimate relationship with a Filipina woman after seeing his friend Mr Kovacs had a successful marriage to the Phillipines-born Melita. Because Mr Olasz was on an invalid pension and had little money, it was agreed that Mr Kovacs would pay for Mr Olasz’s airfares to the Philippines, provided the costs of this were offset by Mr Olasz’s new wife working for them for a short period. [Margo Zlotkowski, ‘Marriage no sham, says man’, The Cairns Post (Cairns), 12 February 2010, 11]

The first attempt made by Mr Olasz to marry failed when the woman returned to her boyfriend a few days after the ceremony. [Margo Zlotkowski, ‘Marriage no sham, says man’, The Cairns Post (Cairns), 12 February 2010, 11] Ms Kovacs then sought assistance from a woman she knew in the Philippines to identify a suitable person. [Kovacs [2009] 2 Qd R 51 [7]] The woman in the Philippines suggested her niece, Ms G. At that time, the Court later heard, Ms G. was working with her aunt in a sewing factory and earning a little over $10 a week. She was then 25 years of age and living in Manila with nine other family members in a one room, galvanised iron shack with no electricity, running water or telephone. The complainant was unmarried and had a son who was ill. [Kovacs [2009] 2 Qd R 51 [7]]

When Melita and Zoltan Kovacs approached Ms G.’s mother (who was in poor health at that time) with their plan, the mother encouraged Ms G. to go with them so that Ms G. could assist the family by sending remittances from Australia to the Philippines. [Kovacs [2009] 2 Qd R 51 [7]]

On 8 January 2001 Ms G. and Mr Olasz married in the Philippines. [Kovacs [2009] 2 Qd R 51 [10]]. According to court proceedings in 2008, Ms G was aware that the marriage was a sham only for the purpose of securing her visa to enter Australia. [Kovacs [2009] 2 Qd R 51 [9]]

This appears to conflict with a claim made by Mr Olasz in 2010 that he intended the marriage to be legitimate. Mr Olasz spent six weeks living with Ms G. ‘as husband and wife’ in the Philippines before returning to Australia. [Margo Zlotkowski, ‘Marriage no sham, says man’, The Cairns Post (Cairns), 12 February 2010, 11] Following this, communication to his new wife ceased until September 2001 when he returned to Manila for three months. The purpose of this visit was to assist Ms G in her application for an Australian visa due to complications with an earlier application. [Kovacs [2009] 2 Qd R 51[10]; Margo Zlotkowski, ‘Marriage no sham, says man’, The Cairns Post (Cairns), 12 February 2010, 11]

Almost a year later, on 28 August 2002, Ms G. arrived in Australia where she was met by Zoltan Kovacs at Cairns airport. [Kovacs [2009] 2 Qd R 51 [10]] Mr Olasz was away on a sailing trip at that time. [Kay Dibben, ‘Man jailed for rape of sex slave ‘niece’’, The Sunday Mail (Brisbane), 21 August 2005, 22] They initially stayed in a motel in Cairns for several days where Mr Kovacs allegedly raped Ms G. on at least three occasions. [Kovacs [2009] 2 Qd R 51 [10]. The allegations of rape form the basis of additional charges] In early September 2002, Mr Kovacs brought Ms G. to Weipa and she began working in the shop during the day and in the Kovacs’ house at night. [ Kovacs [2009] 2 Qd R 51 [9]]

The working conditions of Ms G. can be described as nothing short of slavery. She had to work seven days a week, up to 17 hours per day, with little or no pay. At trial, the Court heard evidence that on weekdays Ms G. was working from 6am to 6 pm in the shop, followed by between four and five hours of domestic work at the Kovacs’ house where she cared for three small children and did household duties. She also had to work in the shop on Saturdays between 6am and 12pm and performed domestic work the remainder of the weekend. She was not allocated any work free days. [ Kovacs [2009] 2 Qd R 51 [9 - 10]]

When Ms G. was ‘recruited’ in the Philippines, Melita and Zoltan Kovacs said that she would receive $800 for her work in Australia, which Ms G. assumed was a sum to be paid monthly. Ms G. was also told that some payment would be withheld to cover the expenses for her visa and travel to Australia. The total amount of these expenses was never revealed to her and she was not informed that she would have to do any domestic work in addition to working in the shop. Mr Kovacs did tell Ms G. that she would ‘have to work for five years before she could leave Australia.’ [Kovacs [2009] 2 Qd R 51 [8]]  After arriving in Australia, Ms G. never received a regular salary. At some point, she received two payments, one of $400 and one of $60. Ms G. then gave some of that money, $350, to Zoltan Kovacs to give to her family in Manila. The family later received about 7000 pesos, which converted to approximately $180, and the Kovacs paid for some medical expenses for Ms G.’s son in Manila. It is not clear whether or not further payments were made to the family. [ Kovacs [2009] 2 Qd R 51 [8 - 9]]

Mr Kovacs continued raping Ms G. in Weipa.  At trial, the Court heard evidence that:

Mr Kovacs had sexual intercourse with the complainant at the shop two to three mornings a week before the arrival at work of another employee, Ms Kris. On some of these occasions he gave her twenty or thirty dollars, which he described as “pocket money”. He also sexually assaulted her in the house when his wife was absent. [Kovacs [2009] 2 Qd R 51 [11]]

Ms G. did not initially complain of or report the rape because Zoltan Kovacs threatened that ‘they would all go to gaol’ if she spoke to police. [Kovacs [2009] 2 Qd R 51 [11]] Ms G. also continued to believe that she may be able to help her family abroad and did not want her mother to worry. Eventually Ms G. made an attempt to flee from the Kovacs in October 2002, about two months after arriving in Australia. On that occasion she took a taxi to Ms Kris, a co-worker, who was the only person Ms G. knew apart from the Kovacs. But Zoltan and Melita Kovacs found Ms G. immediately, brought her back to their house and confiscated her passport. [Kovacs [2009] 2 Qd R 51 [11-13]]

In December 2002, Ms G. was able to flee from the Kovacs successfully with the help of Mr Kovacs’ estranged daughter, Ms Fabian, who was visiting her family for Christmas while her father was abroad. During that time she drove Ms G. to the shop several times and on one of these trips Ms G. told Ms Fabian that she had been repeatedly raped by her father and asked for her help to escape. Together with Ms Kris, Ms Fabian helped Ms G. buy a ticket to fly from Weipa to Cairns. [Kovacs [2009] 2 Qd R 51 [13]] She left Weipa with only a small handbag and the clothes she was wearing. [Kay Dibben, ‘Man jailed for rape of sex slave ‘niece’’, The Sunday Mail (Brisbane), 21 August 2005, 22] A former fishing buddy of Mr Kovacs, Mr Les Morvai, gave evidence in 2010 that he, too, helped to shelter Ms G. while they were in Cairns and that together they went to the Kovacs to demand the return of her passport but were refused. [‘Alleged slavery victim ‘ordered’ around, family friend says’, The Cairns Post (Cairns), 16 February 2010, 9] Ms G. later contacted the Department of Immigration and Citizenship (DIAC) to inquire about obtaining a new passport and DIAC then referred the matter to police.

Commentary and Significant Features

The case of R v Kovacs is unique for the fact that it highlights a number of previously unexamined aspects of human trafficking in Australia. In particular, the case demonstrates the issue of trafficking for the purpose of domestic servitude and how the institution of marriage can be used to facilitate it. In a legal context, the decision by the Queensland Court of Appeal in R v Kovacs expands on the ‘anti-slavery jurisprudence’ in Australia and the High Court’s decision in R v Tang. [ (2008) 237 CLR 1 (‘Tang’)] In a practical way, the Kovacs decision expands the application of the relevant offences to forms of trafficking in persons beyond exploitation in the commercial sex industry.

Extracted below are portions of an article by Andreas Schloenhardt and Jarrod Jolly entitled ‘Honeymoon from hell: human trafficking and domestic servitude in Australia’, published in the Sydney Law Review in December 2010. These extracts further elaborate on the aforementioned issues.

Trafficking for the purpose of domestic servitude

The case of R v Kovacs exposes a previously unexplored vulnerability in Australia’s approach to trafficking in persons: trafficking for the purpose of domestic servitude. While the issue has not been flagged in Australia until now, it is interesting to note that in the United States involuntary domestic servitude accounts for 27 per cent of known trafficking cases. [Melynda H Barnhart, ‘Sex and Slavery: An Analysis of Three Models of State Human Trafficking Legislation’ (2009) 16 William & Mary Journal of Women and the Law 83, 86] The United States State Department’s annual Trafficking in Persons Report describes involuntary domestic servitude as a ‘unique form of forced labour’ because the victims’: workplace is informal, connected to their off-duty living quarters, and not often shared with other workers. Such an environment is conducive to exploitation since authorities cannot inspect private property as easily as they can inspect formal workplaces. [United States Department of State, Victims of Trafficking and Violence Protection Act of 2000: Trafficking in Persons Report, Washington (DC): Department of State, June 2009, 18]

The case of R v Kovacs is by no means an isolated one but cases of domestic servitude rarely come to light in Australia, especially if they occur in rural and remote parts of the country. Moreover, relevant policy, law, and law enforcement in Australia is, by and large, preoccupied with trafficking into the sex industry, [ See also Andreas Schloenhardt, Genevieve Beirne and Toby Corsbie, ‘Human Trafficking and Sexual Servitude in Australia’ (2009) 32 University of New South Wales Law Journal 27, 31] and occasional investigations of allegations relating to labour trafficking. [Andreas Schloenhardt, Genevieve Beirne and Toby Corsbie, ‘Human Trafficking and Sexual Servitude in Australia’ (2009) 32 University of New South Wales Law Journal 27, 35 - 36; see also Fryer v Yoga Tandoori House Pty Ltd (2008) 60 AILR 100]

[…]

The Kovacs case is the first case of trafficking for domestic servitude to be prosecuted under slavery laws in Australia. As such, it provides an interesting insight into the unique nature of trafficking for the purpose of domestic servitude. The victim, Ms G., worked in a takeaway food shop, in the view of the public, on a daily basis and yet it took five months for her to escape. The subtle factors that served to prevent Ms G. from escaping any earlier have been canvassed in earlier parts of this article. The very fact that Ms G. was not under ‘lock and key' or ‘total’ ownership is indicative of the level of subtle control the Kovacs had over her. Indeed, when asked why she did not attempt to leave or report the situation or rapes to relatives, Ms G. stated that ‘shame and embarrassment in Filipino society, not just to her but also her ailing mother, had stopped her saying anything’. [ ‘I could have left, alleged slave says’, Cairns Post (Cairns), 29 November 2007, 7] This perhaps explains why cases such as this are so difficult to detect.

Another lesson from the Kovacs case is the way in which persons from developing nations may be vulnerable to promises of paid domestic work in Australia. It is quite clear from the case that Ms G. was coming to Australia in order to provide for her family, in particular her son and mother who were in poor health. As such, Ms G. was in a very vulnerable position.

The Kovacs case also highlights how remote locations can make detection of trafficked persons extremely difficult. Justice Muir specifically noted that ‘the remote location of the shop and house’ served further to disadvantage Ms G. [Kovacs [2009] 2 Qd R 51 [48]] A number of media reports allege that the Kovacs had a history of holding female foreign workers against their will. [Peter Martinelli, ‘Couple to face charge of slavery’, Cairns Post (Cairns), 27 July 2006, 1; James O’Loan, ‘Friend of accused tells court: Pair paid for trip not marriage’, Cairns Post (Cairns), 28 July 2006, 7] It was reported that Mr Kovacs’ daughter told the court her father had previously held two Hungarian women at Weipa against their will in the 1990s. It was claimed that he withheld their passports, forced them into domestic work to repay the cost of their flights and that they were subjected to abuse. [Peter Martinelli, ‘Couple to face charge of slavery’, Cairns Post (Cairns), 27 July 2006, 1] While these reports are currently unsubstantiated by any court proceedings, they further emphasise the way in which remote areas may provide perfect ‘hiding spots’ for those seeking to traffic domestic servants.

The key observation from the Kovacs case is that in cases of trafficking for domestic servitude, a multitude of different factors can combine effectively to enslave a person, despite their apparent physical ability to leave or report the situation. In particular, remote locations clearly enhance a sense of hopelessness for those trafficked for the purpose of domestic servitude. What worsens this situation is that the domestic servitude may not be overtly obvious to others given that the victim may have certain illusory freedoms and yet still feel isolated and unable to leave.

‘Sham marriages’

The case of R v Kovacs also confirms longstanding concerns that marriage may be used as an avenue to bring women into Australia for the purpose of domestic exploitation. Despite frequent media reports, this practice remains poorly researched — and inadequately regulated — in Australia.

The term ‘sham marriages’ refers to situations where a person misuses the immigration system that permits Australian citizens and permanent residents to sponsor a partner who lives abroad so that the person may migrate to Australia permanently. The marriages are entered into purely for immigration purposes with no genuine intention that the two parties continue their relationship once the migrant is in Australia. Entering into a contrived marriage or relationship, or pretending to be in a ‘genuine and continuing relationship’ for immigration purposes, is recognised as a form of immigration fraud. [ Migration Act 1958 (Cth) div 12, sub-div B]

[…]

The case of R v Kovacs is one of very few known cases linking sham marriages with human trafficking. As outlined earlier, Mr Kovacs and his wife wanted to employ a worker and domestic helper from the Philippines, so they organised a sham marriage between Ms G and Mr Olasz. Ms G was told that ‘she would need to marry a white Australian man in order to assist in obtaining a visa, but that the marriage would be fake.’ [ Kovacs [2009] 2 Qd R 51 [9]] It did appear, however, that Mr Olasz was indeed looking for a legitimate relationship with a woman from the Philippines. [Margo Zlotkowski, ‘Marriage no sham, says man’, The Cairns Post (Cairns), 12 February 2010, 11] While the application for a visa failed on the first attempt due to a lack of evidence to support a genuine relationship, it was granted upon the second attempt. This was after Mr Olasz spent a three-month period living in the Philippines to support the application. [Margo Zlotkowski, ‘Marriage no sham, says man’, The Cairns Post (Cairns), 12 February 2010, 11; Kovacs [2009] 2 Qd R 51 [10]] Mr Olasz claimed that the arrangement with the Kovacs was for Ms G. to work for them until the costs of arranging the marriage were paid off. [Margo Zlotkowski, ‘Marriage no sham, says man’, The Cairns Post (Cairns), 12 February 2010, 11]

The principal trafficking element in the Kovacs case is the fact that the sham marriage was used to facilitate the victim’s transportation to Australia. Ms G. was coerced into marrying Mr Olasz by offering promises of payment in return for domestic work, something Ms G. was vulnerable to in her position of poverty. This was evidenced by the encouragement of her mother to comply with the plan so that she could send remittances back to the family. The marriage itself was fraudulent and the Kovacs were actively involved in applying for Ms G’s visa and setting up the marriage in order to facilitate her entry into Australia to work for them. The deception of the victim relates to the actual conditions of her work in Australia and the payment she would receive for it. This formed the basis of her exploitation.

In the wake of the Wei Tang decision, the decision of the Court of Appeal in R v Kovacs serves to reinforce the direction of Australia’s anti-slavery jurisprudence. In particular, the expanded meaning of ‘slavery’ accepted by the High Court in R v Tang was used to facilitate the ¾ ultimately successful ¾ prosecution of a novel case that involved domestic servitude. The decision recognises the view in R v Tang that there are cases of trafficking and slavery where more subtle forms of coercion are used to prevent the victim from leaving.

This case has also been used for the Australian "Be Careful What You Pay For" campaign in 2011, see poster.

Sentence Date:
2010-02-18
Author:
University of Queensland Human Trafficking Working Group

Keywords

Acts:
Recruitment
Transportation
Transfer
Harbouring
Receipt
Means:
Threat or use of force or other forms of coercion
Abduction
Fraud
Deception
Abuse of power or a position of vulnerability
Purpose of Exploitation:
Exploitation of the prostitution of others or other forms of sexual exploitation
Forced labour or services
Slavery or practices similar to slavery
Servitude
Form of Trafficking:
Transnational
Sector in which exploitation takes place:
Domestic servitude

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Offending

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

Australia

Philippines

• Gender Dimension

Procedural Information

Legal System:
Common Law
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
 

1st instance: Supreme Court of Queensland (Townsville) (unreported)

Court: Supreme Court of Queensland (Townsville)

Trial date: November 26, 2007 – December 5, 2007
Verdict date: December 5, 2007

Sentencing decision date: December 6, 2007

Zoltan and Melita Kovacs were tried together before the Supreme Court of Queensland, sitting in Townsville, in November 2007.  A pre-trial application for a separate trial by Mrs Kovacs was heard in Cairns and dismissed on 19 September 2007.  No such application was made to the trial judge. [Kovacs [2009] 2 Qd R 51 [49] ]

At the end of the trial, which spanned for over a week, Zoltan Kovacs was convicted for arranging the marriage between G and Mr Balint Olasz for the purpose of assisting G to obtain a visa to enter Australia; [Section 240(1) Migration Act 1958 (Cth) ] intentionally possessing a slave between August 27, 2002, and February 5, 2003; [Section 270.3(1)(a) 1st alt Criminal Code (Cth) ] and intentionally exercising power over/using a slave over the same period. [Section 270.3(1)(a) 2nd alt Criminal Code (Cth) ] He was sentenced to one year imprisonment for the marriage offence, and eight years imprisonment for the slavery offences. A non-parole period of three years and nine months was set.

Melita Kovacs was convicted for the same offences and was sentenced to four years imprisonment for the slavery offences and one year imprisonment for arranging the sham marriage. The non-parole period was set for her at 18 months. [Kovacs [2009] 2 Qd R 51 [3] ]

2nd Instance: R v Kovacs [2009] 2 Qd R 51 (appeal case – discussed below).

Appeal Court: Queensland Court of Appeal

Hearing: October 29, 2008
Judgment:
December 23, 2008

See below for reasoning. A retrial was ultimately ordered.

3rd Instance: Supreme Court of Queensland (Cairns) (unreported)

Court: Supreme Court of Queensland (Cairns)

Trial: February 11, 2010 – February 17, 2010

Verdict: February 17, 2010
Sentencing decision: February 18, 2010

In February 2010, after a five-day trial in the Queensland Supreme Court at Cairns, Melita Kovacs was found guilty of using and possessing a slave while Zoltan Kovacs pleaded guilty to the same charges. Justice Stanley Jones subsequently sentenced Melita Kovacs to four years in jail, with a non-parole period of 18 months. Having served nine months in prison already, she will now be due for parole in December 2010. Mr Kovacs was sentenced to eight years in jail but is eligible for parole in May 2011 due to the fact that he is already serving a seven-year term for the rape and sexual assault of a different woman, Ms AV, in 1997. [Evan Schwarten, ‘Qld: Couple jailed for slavery’, Australian Associated Press (Rhodes), 18 February 2010. See below, ‘Previous Criminal History’; R v Kovacs [2007] QCA 441] Mr Kovacs’ guilty plea and poor state of health were taken into account in the sentencing. [‘Kovacs jailed for slavery’, The Cairns Post (Cairns), 19 February 2010]

On March 15, 2010, Melita Kovacs sought leave to appeal her sentence in the Supreme Court, and the matter is ongoing. [Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response 1 May 2009 – 30 June 2010, Canberra, ACT: Commonwealth of Australia, 2010, 34].

Note: Zoltan Kovacs also faced charges of rape in relation to Ms G.  These proceedings are not discussed in this case report (see further, R v Kovacs [2007] QCA 143 First appeal: R v KO [2006] QCA 34).

 
 

Victims / Plaintiffs in the first instance

Victim:
G.
Gender:
Female
Nationality:
Filipino

Defendants / Respondents in the first instance

Defendant:
Zoltan Kovacs
Gender:
Male
Nationality:
Australian
Legal Reasoning:

On December 21, 2007, Mr and Ms Kovacs filed appeals against their convictions and sentences in the Queensland Court of Appeal.  The appeal was heard on 29 October 2008 before de Jersey CJ, Muir and Fraser JJA. On 23 December 2008, Muir JA delivered judgment with which de Jersey CJ and Fraser JA agreed. [Kovacs [2009] 2 Qd R 51]  In brief, the Court of Appeal held that a miscarriage of justice had occurred on the basis of two errors of the law.  Firstly, evidence that should have been regarded as inadmissible was admitted.  Secondly, the trial judge gave inadequate directions under Queensland legislation in relation to one witness who gave evidence from behind a screen. [Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009, Canberra, ACT: Commonwealth of Australia, 2009, 72.] Accordingly, the appeal was allowed, the slavery convictions were set aside and a retrial was ordered. The convictions for arranging the sham marriage were upheld. [Kovacs [2009] 2 Qd R 51 [107]]

In R v Kovacs the Queensland Court of Appeal considered six grounds of appeal contended by the appellants. The Court of Appeal dismissed the first ground of appeal that the trial judge had both misdirected and failed to direct the jury in relation to the elements of the slavery charges against both Melita and Zoltan Kovacs. [Kovacs [2009] 2 Qd R 51 [14 - 19]] It confirmed the approach of the High Court in stating that there are three elements to the offence of slavery. [Kovacs [2009] 2 Qd R 51 [18]]. On the first ground of appeal it was also argued that there was a failure to give adequate directions regarding the fault element of the slavery offence because the meaning of ‘intention’ and how it relates to the physical element of ‘conduct’ had not been explained. [Kovacs [2009] 2 Qd R 51 [20 - 25]]. The Court, however, did not find that this amounted to a miscarriage of justice. [Kovacs [2009] 2 Qd R 51 [27]].

The Court of Appeal also rejected the second ground of appeal that ‘the primary judge erred in directing the jury that to find [Ms Kovacs] guilty they did not need to be satisfied that [Ms G] was in the condition of slavery for the duration of the period charged.’ [Kovacs [2009] 2 Qd R 51 [33 - 43]]. This contention necessitated a consideration of what amounted to the condition of slavery. The trial judge directed the jury that ‘you do not have to be satisfied that 24 hours a day, seven days a week that condition existed.’ [Kovacs [2009] 2 Qd R 51 [33]] Instead he directed the jury that they only had to be satisfied beyond reasonable doubt ‘that during that period she was at some time or times in a condition of slavery and that at the time or times she was in a condition of slavery she was possessed or used by the accused’. [Kovacs [2009] 2 Qd R 51 [33]] Counsel for the Kovacs argued that reducing a person to the condition of slavery ‘cannot be transitory in nature’ because it would be inconsistent with the concept of legal ownership of property. [Kovacs [2009] 2 Qd R 51 [36]] In rejecting this ground of appeal the Court of Appeal held that:

The offence of slavery is not one constituted by the doing of prescribed acts. It is an offence which, in this case at least, is constituted by a course of conduct which comprises a number of acts over an extended period. [Kovacs [2009] 2 Qd R 51 [41]]

As such it was held that the prosecution did not need to establish ‘that the subject offences occurred on every day between the dates alleged.’ [Kovacs [2009] 2 Qd R 51 [43]] This finding reflects the expansion of the modern definition of slavery espoused in the Wei Tang decision, whereby the victim does not need to be under total ‘lock and key’ control in order to prove the offence of slavery.

A third ground of appeal that the verdicts were unreasonable and against the weight of evidence, was also dismissed. [Kovacs [2009] 2 Qd R 51 [44-48]] In support of this ground of appeal it was contended that Ms G had ‘a degree of personal freedom inconsistent with the existence of slavery as defined in the Code.’ [Kovacs [2009] 2 Qd R 51 [46]] Evidence of this, it was submitted, was that she was not locked in her room, was not prevented from leaving the store or house, had access to a telephone, sent and received letters, and was aware money was being paid to her family, despite not receiving wages herself. [Kovacs [2009] 2 Qd R 51 [44]]  The court held, however, that this ‘freedom’ was ‘largely illusory or non-existent’. [Kovacs [2009] 2 Qd R 51 [46]] It is on this issue that the court embraced the approach of the High Court in R v Tang. Justice Muir noted in his judgment that a number of factors combined to prevent Ms G from leaving:

The complainant's family were in circumstances of dire poverty. The receipt of money from the appellants was important in alleviating the effects of that poverty. The complainant knew this and had allowed herself to be persuaded to come to Australia in order to provide financial assistance to her family. The complainant's mother was sick and the complainant did not want to let her down or trouble her. The complainant gave evidence to the effect that Mr Kovacs told her not to say anything to the police or they would all go to jail. Having regard to the manner in which she had gained entry to Australia, Mr Kovacs' warning would not have appeared exaggerated.

Other factors operating to the complainant's disadvantage were: her limited knowledge of the English language, at least in the first few months of her stay; her lack of Australian friends or associates; the unspecified amount of debt of which she had been informed and and the remote location of the shop and house. [Kovacs [2009] 2 Qd R 51 [47-48]]

Ms G was also forcibly returned after attempting to escape and had her passport confiscated. [Kovacs [2009] 2 Qd R 51 [48]]  It was on consideration of this evidence that the Court rejected this ground of appeal. This decision highlights that despite the apparent freedom of a person to leave, they may still be enslaved by a number of more subtle factors.

The fourth ground of appeal, that ‘the primary judge erred in failing to order separate trials’ for the two defendants was also held to be unsustainable. [Kovacs [2009] 2 Qd R 51 [49-53]]

The Kovacs’ appeal was, however, successful on the basis of two errors of law. First, the Court of Appeal held that the trial judge erroneously admitted evidence of the complaints made by Ms G to Ms Fabian and that he failed to direct the jury to ignore that evidence. [Kovacs [2009] 2 Qd R 51 [76]]  Second, the Court of Appeal held that the trial judge failed to give adequate directions when one witness gave evidence from behind a screen. [Kovacs [2009] 2 Qd R 51 [77-84]] Because a screen was used the presiding judge must, according to s 21A(8) of the Evidence Act 1977 (Qld), direct that the jury should not draw inferences as to the defendant’s guilt, increase or decrease the probative value of the evidence or give it any greater or lesser weight. It was held that the directions given by the trial judge did not address all of these elements. [Kovacs [2009] 2 Qd R 51 [84]]  The Court highlighted a number of inconsistencies in the evidence but ultimately found that the ‘natural limitations’ on the Court of Appeal’s ‘ability to evaluate and find the relevant facts prevent a finding of guilt beyond a reasonable doubt.’ [Kovacs [2009] 2 Qd R 51 [85-106]]

Defendant:
Melita Kovacs
Gender:
Female
Nationality:
Australian
Legal Reasoning:

Ibidem Defendant 1

Charges / Claims / Decisions

Defendant:
Zoltan Kovacs
Verdict:
Guilty
Charge / Claim:
Intentionally possessing a slave
Legislation / Statute / Code:
s 270.3(1)(a) Criminal Code (Cth)
Verdict:
Guilty
Charge / Claim:
Intentionally exercising ownership over/using a slave
Verdict:
Guilty
Charge / Claim:
Arranging a marriage for visa purposes
Term of Imprisonment:
8 years
 
with a non-parole period of 3 years and 9 months (on retrial, sentence was increased to 9 years imprisonment with a non-parole period of 3 years and 9 months)
Compensation / Payment to Victim:
No     
Fine / Payment to State:
No       
Defendant:
Melita Kovacs
Verdict:
Guilty
Charge / Claim:
Intentionally possessing a slave
Verdict:
Guilty
Charge / Claim:
Intentionally exercising ownership over/using a slave
Verdict:
Guilty
Charge / Claim:
Arranging a marriage for visa purposes
Term of Imprisonment:
4 years
 
with non-parole period of 18 months (on retrial resentenced to the same sentence)
Compensation / Payment to Victim:
No     
Fine / Payment to State:
No       

Court

Queensland Court of Appeal

Sources / Citations

Official case reports
First appeal (slavery charges): R v Kovacs [2009] 2 Qd R 51, (2009) 192 A Crim R 345, [2008] QCA 417

Appeal against sentence: R v (Melita) Kovacs [2009] QCA 116

Second appeal (rape charges): R v Kovacs [2007] QCA 143

First appeal (rape charges): R v KO [2006] QCA 34

Unrelated rape appeal: R v Kovacs [2007] QCA 441

 

Secondary sources

‘Alleged slavery victim ‘ordered’ around, family friend says’, The Cairns Post (Cairns), 16 February 2010, 9.

‘I could have left, alleged slave says’, Cairns Post (Cairns), 29 November 2007, 7.

‘Kovacs jailed for slavery’, The Cairns Post (Cairns), 19 February 2010.

‘Multiple rapist jailed for eight years’, The Cairns Post (Cairns), 4 October 2006, 7.

ABC –– ‘The Law Report’, The Wei Tang Decision, 2 September 2008. (Damien Carrick, Interview with Jennifer Burn)

Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009, Canberra, ACT: Commonwealth of Australia, 2009, 71 – 72.

Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response 1 May 2009 – 30 June 2010, Canberra, ACT: Commonwealth of Australia, 2010.

Australian Institute of Criminology, ‘Labour trafficking: prosecutions and other proceedings, Transnational Crime Brief, no 05, 2009.

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